DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
7015S. COURTHOUSE ROAD, SUITE t00t
ARLINGTON, VA 22204-2490

 

HD

Docket No. NR9148-13
22 May 2014

From: Chairman, Board for Correction of Naval Records
Tox Secretary of the Navy

Subj: LT SP vsc, vsne, é

REVIEW OF NAVAL RECORD (RECONSIDE LON

Rei: {a) 10 U.S.C. 1552

Encl: (1} DD Form 149 undtd w/attached brief
{counsel brief dtd 23 Aug 10 w/enclosures)
(2) HD:hd Docket No. 0974-10 ltr dtd 21 Oct 10
w/fenclosure
(3) HD:ha@ Docket No. 04380-11/0974-10 ltr dtd 27 Apr 11
{4) U.S. Ct of Fed Claims remand order dtd 11 Dec 13
(5) OJAG Code 13 ltr 5420 SER 13/1BC0428.14 undtd
(6) Subject’s ltr dtd 22 Apr 14
(7) PERS-802 e-mail dtd 30 Apr 14
(8) BCNR e-mail dtd 1 May 14 and
PERS-802 replies dtd 1 and 19 May 14
(9) Subject’s e-mail dtd 1 May 14
(10) OJAG Code 13-¢-mail dtd 7 May 14
(11) Subject’'s ltr dtd 12 May 14

1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with this
Board requesting, in effect, that the applicable naval record be
corrected to show his promotion to lieutenant junior grade (pay grade
O-2) with a date of rank and effective date of 6 June 2007 (the day
after his disenrollment from the Uniformed Services University of
the Health Sciences (USUHS)), and promotion to lieutenant (pay grade
O-3) with a date of rank and effective date of 6 June 20059 (his due
course lieutenant date of rank, with a 6 June 2007 lieutenant junior
grade date of rank, would be 1 July 2009).

2. The Board, consisting of Messrs. Hicks, Spooner and Swarens,
reviewed Petitioner's allegations of error and injustice on

22 May 2014, and pursuant to its regulations, determined that the
corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board
consisted of the enclosures and applicable statutes, regulations and
policies.

3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice, finds as follows:

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations
within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

c. Enclosure (2) shows that the Board denied Petitioner’s
request on 21 October 2010. Enclosure (3) shows the Board’s staff
denied counsel's request for reconsideration on 27 April 2011.

d. Enclosure (4), the remand order from the United States Court
of Federal Claims, directed that the Board (1) determine whether
Secretary of the Navy Instruction (SECNAVINST) 1421.4D continued to
apply to Petitioner because it was in effect when he was enrolled
at the USUHS, or alternatively, whether SECNAVINST 1412.6L was meant
to apply retroactively, and explain the basis for the conclusion;
(2) determine whether, and on what dates, Petitioner was on the
Active-Duty List (ADL); (3) determine whether, and on what dates,
Petitioner was on the Reserve Active-Status List (RASL); (4} make
any further determination considered relevant; and (5) determine
whether Petitioner’s request for promotion should be granted in light
of these conclusions.

e. In enclosure (5), the Office of the Judge Advocate General
(Administrative Law/Code 13) addressed the issues specified in the
remand order. Code 13 concluded that Petitioner was properly not
promoted to lieutenant junior grade while he was ina student status.
That office further concluded that when he received his original
appointment in the Medical Service Corps (MSC), United States Navy,
he should have received one half entry grade credit (EGC) for his
service at USUHS, from 21 June 2004 to 5 June 2007. Code 13 stated
that his appointment to the MSC was on 23 June 2009, but he actually
accepted this appointment on 22 December 2009 (23 June 2009 is the
ensign date of rank he was originally assigned, ljiater corrected to
6 June 2007). On 1 November 2012, he accepted appointment as a
lieutenant, MSC, United States Navy Reserve with a date of rank of
1 July 2011. ,

f. Enclosure (6) is Petitioner’s reply to enclosure (5), in
which he maintained his position that he warranted promotion to
lieutenant junior grade in June 2007. He noted that between his
disenrollment from USUHS and his appointment in the MSC, he held the
designator and wore the insignia of a Medical Corps (MC) officer,
and that “The Navy had provisions to appoint officers in the [MC]
to the rank of [lieutenant junior grade].” Petitioner was never
appointed to the MC as he did not graduate from medical school.

g. In enclosure (7), the Navy Personnel Command {PERS-802)
commented to the effect that Petitioner should not be granted any
relief.

h. In enclosure (8), PERS-802 stated that if Petitioner is
granted one half EGC for his service at USUHS, he would receive one
year and six months of EGC, so his MSC constructive ensign date of
rank would change from 6 June 2007 to 5 December 2005; his
constructive date of promotion to lieutenant junior grade from 6 June
2009 to 5 December 2007; and his date of promotion to lieutenant from
1 July 2011 to 1 January 2010.

i. Enclosure (9) is Petitioner's acknowledgment that he had
received the PERS-802 input at enclosure (7).

j. Inenclosure (10), Code 13 stood by the conclusions reflected
in enclosure (5), and noted that PERS-802 cited no authority for its
contrary conclusion that Petitioner should not receive any EGC for
his service at USUHS.

k. In enclosure (11), Petitioner contended that both Code 13
and PERS-802 are wrong, and he asserted that his original appointment
as a health professions officer was on 21 June 2004 (the date he
enrolled at USUHS).

CONCLUSION:

Upon review and consideration of all the evidence of record,

especially in light of the advice from Code 13, and notwithstanding
the opposing view of PERS-802, the Board finds an error warranting
partial relief, specifically, awarding Petitioner half EGC for his
service at USUHS, with corresponding adjustment, consistent with the
PERS-802 input at enclosure (8), of his constructive MSC ensign date
of rank from 6 June 2007 to 5 December 2005; correction of his record
to show his appointment on 22 December 2009 to the MSC was in the
grade of lieutenant junior grade, rather than ensign, with a date
of rank of 5 December 2007; and further correction to adjust his date
of promotion to lieutenant from 1 July 2011 to 1 January 2010. The
Board adopts the Code 13 responses to the issues specified in the
remand order. In view of the above, the Board recommends the
following limited corrective action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected further to show
his appointment to the MSC, United States Navy on 22 December 2009
was in the grade of lieutenant junior grade, rather than ensign, with
a date of rank of 5 December 2007.

b. That his record be corrected further to show he was promoted
to lieutenant with a date of rank and effective date of 1 January
2010, rather than 1 July 2011.

c. That his record be corrected further to show the date of rank
on his appointment as a lieutenant, MSC, United States Navy Reserve
as 1 January 2010, rather than 1 July 2011; and that his lineal
precedence be adjusted accordingly.

d. That any material or entries inconsistent with the Board’s
recommendation be corrected, removed or completely expunged from
Petitioner’s record and that no such entries or material be added
to the record in the future.

e. That a copy of this Report of Proceedings be filed at an
appropriate location in Petitioner’s naval record, and that another
copy of this report be returned to this Board, together with any
material directed to be removed from Petitioner’s record, for
retention in a confidential file maintained for such purpose.

£. That the remainder of Petitioner’s request be denied.

4. It is certified that a quorum was present at the Board’s review
and deliberations, and that the foregoing is a true and complete
record of the Board’s proceedings in the above entitled matter.

Dimathanr 4, (batp~

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your review

and action.
“Kak, rt

ROBERT D. Z2SALMAN
Acting Executive Director

Reviewed and approved:

(AAEM yey

ROBERT L. WOODS

Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000

‘REC'D MAY 2 7 20th